Introduction
Family mediation is an important part of the separation and divorce process. It can be undertaken for a number of reasons including the development of a parenting plan or creating a financial and/or property agreement.
Family mediation supports resolving issues at the earliest, and lowest points. It mitigates the need to negotiate between lawyers or seek a Family Court hearing.
Thorough preparation for family mediation is essential and at Resolutions Australia we walk our clients through this process purposefully and collaboratively.
How do I Prepare for Family Mediation?
Step 1: Understand the Family Mediation Process Before You Begin
- Initial Contact and Intake Session: Your mediator will take the time to explain the family mediation process to you as well as next steps, resources to gather, expectations, and how the mediation experience is framed and focussed. During your intake session with your mediator you’ll have the opportunity to ask all the questions you’d like. Your mediator will also provide you with resource information to take away and read as well as letting you know that you’re very welcome to get in touch prior to mediation if you have any further questions.
- The Joint Mediation Session: The session is legally required to be conducted in the best interests of the child. This means that you and your ex will be collaborating on developing a plan or agreement that recognises this. Mediation has nothing to do with any issues between the clients and everything to do with the children impacted. Family mediation isn’t adversarial, your mediator will make sure of that.
- Reaching Agreement or Next Steps: By the end of the mediation session it is expected that you and your former partner will have developed a plan or agreement that is focused on the children and is workable and realistic for both of you. The agreement will be drafted up and distributed to you by your mediator. Then it’s up to you both to act accordingly to ensure the plan is followed.
If an agreement isn’t reached it isn’t a failure! What has been agreed on, in whole or part, is documented and your mediator will likely suggest a further session to help resolve any outstanding issues.
Step 2: Create Your Family Mediation Checklist
- Financial Documents: If you’re taking part in a financial/property mediation you need to be prepared for a full financial disclosure. This means gathering documentation for all your assets, liabilities, and finances. Bank and mortgage statements, valuations, superannuation balances, payslips, crypto statements, personal loans, car finance agreements etc. The lot! These will form the basis of the financial/property settlement. Having copies to distribute is also a very wise idea.
- Previous Agreements or Court Orders: If there are any court orders or agreements currently in place that could impact on the mediation (financial or parenting) then you need to make sure you have copies of these available.
- A Written List of Your Priorities: Spend time figuring out a number of options to consider in the mediation session. These should focus on resolution of issues and not win/lose. Think about your best case and worst case scenario and ideas and suggestions you’d be happy to consider. This applies to both parenting plans and financial agreements.
Step 3: Prepare Yourself Emotionally
- Stay Calm and Open to Discussion: Pace yourself, use active listening, and take time to consider your responses before voicing them. Monitor your emotions throughout and if needed a break is always available.
- Focus on the Future, Not the Past: Family mediation is focused on present and future needs. The past isn’t there to be rehashed. It helps provide some context but as a split couple that context has now changed profoundly. You’ll be looking ahead throughout the family mediation.
- Be Willing to Listen and Compromise: Keep your focus on the kids. Whatever gets suggested should be seriously considered. Ponder logistics, workability, likelihood of success, fairness and equity.
- Use Grounding Techniques Before the Session: This is hugely valuable. At Resolutions Australia we encourage clients to approach family mediation as a business meeting. We suggest clients visualise leaving their ‘baggage’ at the door. We provide a list of suggestions for making sure the client is comfortable, confident, and positively focussed.
Step 4: Know What to Expect on the Day
- In-Person vs Online Mediation in Australia: Be it online or in person mediation runs much the same. The beauty of online mediation, which Resolutions Australia uses exclusively, is that the client is in an environment of their choice, has the creature comforts on hand, and can prepare the environment as they’d like. Both types of environment allow for breaks, refreshments, private sessions, the use of shuttle techniques, and open and honest communication.
- Ground Rules and How the Session Runs: Prior to family mediation your mediator will outline expectations around communication, body language, behaviour, and focus. The clients are expected to speak positively, examine current and future needs, and not use generalisations. They’re also expected to actively listen and respond. Your mediator will spend time discussing this and will likely take charge and reassert expectations if clients are not meeting them.
- How Long a Mediation Session Typically Takes: At Resolutions Australia our mediation sessions are a standard 4 hours. Our mediators can go longer if needed and clients agree. Positively, our policy is not to schedule any further business on mediation session days. This means that should clients need longer they can simply keep going and not have to reschedule. A fantastic point of difference!
- What Happens If Emotions Run High: They will and they won’t. Family mediation can be a trigger for heightened emotions. If the clients have prepared appropriately then the likelihood of overwhelming emotions is significantly diminished. Your mediator will be using their professional skills to closely monitor emotions in the room and they can utilise a number of techniques to support de-escalation. You’re always very welcome to ask for a short break which can certainly help.
Step 5: Understand What Happens After Mediation
- Parenting Plans and Written Agreements: So, you and your former partner have developed a parenting plan or financial agreement. Well done! Your mediator will have been recording and drafting this as the mediation session progressed. They will finalise this and send both parties a copy to sign. At Resolutions Australia we guarantee the plan or agreement will be with you for signing within 24 hours. Now you’ve got the plan or agreement it’s time to act on it!
- Turning Agreements Into Consent Orders: This is a relatively simple legal process. Provide your family lawyer with a copy of the agreement and discuss turning this into a consent order with them. Essentially, your lawyer submits the agreement or plan to the Family Court and they will use this as the basis of the consent order. A consent order isn’t essential and at Resolutions Australia we suggest that if your agreement is working and both parties are acting in good faith then there is no need for it to become a legally enforceable document. If you are concerned that the other party may not stick to what was agreed then turning it into a consent order may be the way to go. The choice is yours and your lawyer can arrange this.
- Section 60I Certificates If No Agreement Is Reached: Sometimes mediation isn’t successful. When this happens your mediator will supply you with what’s known as a section 60i certificate. This certificate is a legal document and it outlines the why the mediation wasn’t successful. It doesn’t record the detail but rather the nature of the failure. This document can be provided to your lawyer and be utilised in Family Court to help inform proceedings.
- When a Follow-Up Session May Be Needed: Follow-up sessions are common. It may be to finalise details of plans or agreement, continue mediating outstanding issues, or to review and modify what was agreed due to unforeseen circumstances or difficulties in putting the plan into action.
When is Family Mediation Not Appropriate?
There are a number of reasons that family mediation may not be appropriate. Your mediator will usually make this decision after an initial enquiry conversation or following intake. The decision can be made in mediation also. It is important for clients to know that whatever the reason for not mediating or terminating mediation is, the mediator does not have to disclose this. This is for the protection and safety of all parties and the family mediator.
- Family Violence or Safety Concerns: If family violence has been prevalent or either party or the mediator has safety concerns these may indicate that family mediation is not an appropriate pathway.
- Power Imbalances Between Parties: At times it may become apparent that one party holds or uses power over the other party. If this is likely to impact negatively during the mediation then it becomes another example of when family mediation isn’t appropriate.
- When One Party Refuses to Participate: This does happen even though attempting family mediation is expected. When making contact with one of the parties hasn’t been successful or the party contacted has refused to engage with mediation then the family mediator will deem mediation inappropriate and a section 60i certificate will be issued to the party who was willing and this document will reflect the other parties refusal.
What are some Tips for a Successful Family Mediation?
- Bring More Documents Than You Think You Need: When taking part in a financial/property mediation bring everything! If it relates to your finances, big or small, bring it…and copies!
- Write Down Your Goals Before the Session: Make a list, consider current and future needs, ponder your best and worst case scenarios, imagine your post-mediation new normal. Write it down well in advance and tweak it as needed as the family mediation approaches.
- Speak in “I” Statements, Not Accusations: Family mediation isn’t about rehashing the past. It is about the here and now and what the future may be. And it is about the kids. Leave the negatives outside and focus on your honest ideas, opinions, and thoughts around the children and their needs.
- Keep Children’s Needs at the Centre: I know it sounds like a stuck record but by law it is the best interests of the children impacted that have to be the point of focus. The spouse side of the relationship is over however the parenting part is still going and needs to be maintained, alive and thriving, for the sake of the children.
How Does Resolutions Australia Help Me Prepare?
Your family mediation is a wonderful opportunity to look ahead. With the ups and downs of a relationship ending, mediation should be seen as a valuable opportunity to do right by your children.
With that in mind, Resolutions Australia will help you to prepare purposefully. Preparation will include all the documentation needed, documenting your ideas and options, and steps to ensure you’re ready and feeling confident about the mediation session.
You should read and discuss all the resources your family mediator provides. Ask them plenty of questions, and remember that what you’re doing is to support your children to have the best possible future they can have.
If you’re ready to take the next step towards your new normal please get in touch! The Resolutions Australia team is here to help.
Frequently Asked Questions
1. What should I bring to family mediation in Australia? All relevant financial documents for a financial mediation, thoughts and ideas and proposals to consider, and any questions you might have that your mediator can answer.
2. How long does a family mediation session usually take? At Resolutions Australia we use 4 hours as our standard session. We’re able to go longer if needed!
3. What happens if we can’t reach an agreement in family mediation? Don’t see it as failure. Consider taking a week or two to reflect and then re-attempt. If it still hasn’t been successful then it may not be the path for you. Discuss possible next steps with your mediator or family lawyer.
4. Can I refuse to attend family mediation in Australia? Yes, however this is usually not looked on favourably by the Family Court if your situation ends up going to a hearing. Not attending will likely lead to significantly higher legal costs and a protracted, adversarial battle.
5. Do I need a lawyer before attending family mediation? No, however at Resolutions Australia we always recommend seeking legal advice when considering divorce.
